COMPARATIVE LAW OF TORTS

Abstract

Teachers of comparative law with a specific penchant for torts have at last been rewarded with a scholarly text and companion volume of statutory and case materials by the auspicious Oxbridge team of Lawson and Markesinis. While genealogically this work descends from the late Harry Lawson's Negligence in the Civil Law (1950), it is much more ambitious in coverage and depth. More than half of the original was devoted to Roman law, the remainder containing only a four-page 'Note on French Cases' amidst 'Extracts from Foreign Codes' and a number of French decisions. Volume I of the new work consists of five chapters of text, and Volume II contains a much more comprehensive collection of German as well as French cases (the former translated into English in the belief that English students can be expected to cope with French but not German in the original). Volume I starts with Professor Lawson's well-known chapter on the Lex Aquilia and its subsequent history. It was retained (though updated), we are told, because it provides an excellent introduction for common law students to the modem civil law, besides being worthy of academic attention for its own sake as an 'admirable creation of brilliant and systematic minds'. True it certainly is that many of the still recalcitrant problems were already identified by the Roman jurists (omissions, economic loss, etc.), but the modern law of torts in Europe bears few discernible traces of that heritage. (To the best of my knowledge, only at Stellenbosch in South Africa is the course on delict still anchored to the old texts, complemented no doubt by the pervasive and oracular Voet.) In deference to the lamentable decline of classical languages in post-war Britain, the text of Dig 9.2 now appears in translation, with the consolation that the 'more serious' student will have easy access to the original. In truth, the whole retention of this Roman law relic surely owes more to nostalgia than to functional justification. As any glimpse at the literature quickly reveals and our authors readily admit at the outset, the Lex Aquilia has had, and seemingly continues to have, a curious, almost neurotic, fascination for British scholars. In any event, the main emphasis of Lawson and Markesinis has shifted to modem civil law. Its core is the second chapter, 'Fixing the Boundaries of Tort Liability', which conveniently reproduces Markesinis's memorable paper in the Cambridge Lectures: Selected Papers of the Canadian Institute of Advanced Legal Studies (1981). This chapter analyses a series of familiar 'policy factors'